702
Scalia, J., dissenting
IV
If, however, the Court is newly to announce that it has discovered that the granting or withholding of a contract is a First Amendment issue, a coherent statement of the new law is the least that those who labor in the area are entitled to expect. They do not get it from today's decisions, which contradict each other on a number of fundamental points.
The decision in Umbehr appears to be an improvement on our Elrod-Branti-Rutan trilogy in one sense. Rutan, the most recent of these decisions, provided that the government could justify patronage employment practices only if it proved that such patronage was "narrowly tailored to further vital governmental interests." 497 U. S., at 74. The four of us in dissent explained that "[t]hat strict-scrutiny standard finds no support in our cases," and we argued that, if the new constitutional right was to be invented, the criterion for violation should be "the test announced in Pickering [v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968)]." Id., at 98, 100 (opinion of Scalia, J.). It thus appears a happy development that the Court in Umbehr explicitly rejects the suggestion, urged by Umbehr and by the United States as amicus curiae, that "on proof of viewpoint-based retaliation for contractors' political speech, the government should be required to justify its actions as narrowly tailored to serve a compelling state interest," ante, at 676; accord, ante, at 678, and instead holds "that the Pickering balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of [independent contractors'] protection" under the First Amendment, ante, at 673. Pickering balancing, of course, requires a case-by-case assessment of the government's and the contractor's interests. "Pickering and its progeny . . . involve a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities." United States v. Treasury Employees, 513 U. S. 454, 466-467 (1995). See also id., at 480-481 (O'Connor,
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